Allentown developer sues Coopersburg

Company says borough sewer ban has rendered property "worthless.'

An Allentown developer wants Lehigh County Court to order Coopersburg to pay damages because it can't develop an 8.6-acre vacant lot in the borough.

FPM Development LLC owns the property at 122 N. Second St. and has conditional borough approval to build a 27-lot residential subdivision.

But the development can't proceed because Coopersburg has to stop storm-water infiltration into its sanitary sewer system before any new connections can be made.

FPM argues Coopersburg "has effected a de facto condemnation" of FPM's property because homes that would be built in its subdivision can't hook up to the system.

"We disagree, and we're going to defend ourselves in the legal arena," said Dennis Balascak, borough council president.

FPM's suit was filed Feb. 9 by Patrick Reilly, a lawyer who is one of the principals in that business, along with Fred Derby and Mark Ford.

On Feb. 15, Judge J. Brian Johnson appointed a three-member Board of View to review the condemnation request "and issue a report regarding just compensation."

Reilly expects Coopersburg will file preliminary objections claiming there has not been a taking of the property and that FPM is not eligible for any damages. That would send the issue back to court, postponing any action by the Board of View. A judge would then decide "if there was a taking under the law," Reilly said.

If the court agrees FPM has a case, he said, that board would determine what the property is worth and what it would be worth if FPM could develop it.

"The board will set a dollar amount," Reilly said, adding FPM also would be entitled to compensation for mortgage, taxes and insurance it has paid from the date the court determines the land was taken.

Reilly said Coopersburg would not become the property's owner if FPM wins.

"We'll still own it, but it's worthless," Reilly said. "We can't do a thing with it."

Reilly said if Coopersburg wants to also pay the $400,000 FPM paid for the lot, "they can have it."

Coopersburg, which has fewer than 3,000 residents, could not afford to buy that land, said Balascak, nor would he support using taxpayer money to buy it.

Reilly said Coopersburg approved the subdivision for the property in 2002, one year before he and his partners bought it from Kirk McQuiddy, the previous owner.In 1996, Upper Saucon issued a moratorium on new sewer connections in Coopersburg as well as the adjoining southwest corner of the township. That moratorium remains.

"This occurred in large part because the borough's sewer system was and is in disrepair and, during periods of heavy rain, storm-water infiltrates the system, increasing the number of gallons delivered to [Upper Saucon's] treatment facility," FPM's suit states.

William Erdman, Coopersburg's engineer, said: "Was there some false expectation about when the infiltration problem would be corrected? There was never any guarantee it was going to be fixed within a certain amount of time. I've never committed to any date."

However, Reilly said, a 2003 arbitration decision stipulated Coopersburg would correct infiltration problems before the end of 2004.

Regardless of whether Coopersburg has taken steps to fix the problem, Reilly said, "it's not fixed. It still exceeds its allotted capacity."

Balascak said it took 13 months for the state Department of Environmental Protection to approve the last revision of Coopersburg's corrective action plan to end the problem.

"Upper Saucon has notified us they are appealing that DEP approval to the state Environmental Hearing Board," he said.

The DEP approved Coopersburg's plan Dec. 20, Erdman said.

Reilly said it doesn't make sense to proceed with a subdivision of single-family homes if public sewers are not available. Since the moratorium began in 1996, Coopersburg has not issued any new sewer hookup permits and there has been no new residential construction, the suit states.

Coopersburg has approved new subdivision plans since 1996, but that approval is conditional in part on hooking up to the borough sewer system. Coopersburg does not allow on-site septic systems.

Reilly said it may take several years to resolve the suit.

Erdman said Coopersburg may have its infiltration problems fixed before FPM's case is resolved.

"I'd like to think we can have it resolved within a couple of years," he said.